DOMA Ruling: Justice Ruth Bader Ginsburg Warns Against Acting Too Fast


Ruth Bader Ginsburg is an avowed supporter of a woman’s right to choose, and one of the Supreme Court’s most liberal justices, so it was sobering to hear her recent criticism of the Roe v. Wade ruling of 1973 which effectively legalized elective abortion in the United States.

According to Justice Bader Ginsburg, the ruling is flawed because it was too sweeping, invigorating the ceaseless anti-abortion backlash over the past 40 years. Had public sentiment for abortion rights been allowed to develop more organically without the Supreme Court ruling, she argues, a woman’s right to choose would have been eventually accepted in the U.S., rather than remain the polarizing issue it is today.

"That was my concern, that the court had given opponents of access to abortion a target to aim at relentlessly," Bader Ginsburg said. "My criticism of Roe is that it seemed to have stopped the momentum that was on the side of change."

Her statements have alarmed gay marriage advocates, who worry that this signals reluctance by her and the Court to make a sweeping ruling on the issue. Justice Anthony Kennedy, a frequent swing voter, made a similar statement about the Court’s potential overreach in March.

The influence and power of the Supreme Court cannot be overstated. But is change more sustainable and meaningful when it takes root on the local level, rather than when it is mandated by “unelected old men” (as Bader Ginsburg referred to the justices who decided Roe v. Wade)?

As an American woman who lives in constant fear of losing my reproductive rights, I sympathize with Bader Ginsburg’s argument. A woman’s right to choose should be an unquestioned fixture of American social and political culture. Instead, 40 years after Roe v. Wade, many American women, particularly poor women, have virtually no abortion access as states tighten regulations on clinics and service providers.

In contrast, the momentum for gay marriage continues to grow, with Minnesota as the latest victory. Nate Silver predicts that by 2020, only six states will oppose marriage equality.

As thrilled as I am by this increased acceptance, I am somewhat unsurprised, since the gay marriage movement is, among other things, an assertion and reinforcement of one of the most traditional structures in world civilization. Affirming the rights of gays to partake in an inherently conservative institution such as marriage may seem radical to some, but in actuality it only strengthens the tenets of our society, despite what right-wingers say.

The right of a woman over her own body is the diametric opposite of patriarchal society, and is thus more radical and threatening. Roe v. Wade overhauled the law before American culture could come to grips with, and normalize, a woman’s right to choose.

Hindsight is 20/20, of course, and I certainly would not want to live in a world without Roe v. Wade. Still, Bader Ginsburg makes a valid point about the limitations of the Supreme Court while reminding women of how precarious our rights are.

More than anything, Bader Ginsburg is hinting at the darkest of my nightmares. We may have to lose the right to choose before it finally becomes ingrained in American culture.